trademarks-beverage

by Robert C. Lehrman on March 9, 2009

I am pleased to share a guest post, from Paul Jorgensen. Paul is an attorney in Washington, D.C.

For readers thinking of registering a surname as a trademark for their beverage, please consider a recent case by the judicial branch of the U.S. Patent and Trademark Office (PTO), the Trademark Trial and Appeal Board (TTAB). According to In re Hall Wines, Serial No. 78926151 (February 10, 2009), anything that looks like a surname in your mark must be, above all, unique. The PTO usually refuses marks that are surnames, reasoning that if the PTO grants registration to that name, others may be unfairly stopped from using their name on their business, products or services. Since distillers and wineries often think of branding their products with family names, famous names, or names of well-known craftsmen, the resulting marks are frequently refused. So distillers and wineries should have a clear understanding of how the PTO will review their proposed mark. If the PTO thinks your application contains a surname, they will put the proposed mark through four tests, often referred to as Benthin factors after a case with the same name (In re Benthin Management GmbH, 37 USPQ2d 1332, 1334 (TTAB 1995)):

by Robert C. Lehrman on February 10, 2009

A lot of labels on this blog speak to men. This one speaks loudly to women. Above are two of four Hello Kitty table wines imported from Italy by USA Wine Imports of New York, NY. Wiki says Hello Kitty is:

one of many simply drawn fictional characters produced by the Japanese company Sanrio. Designed by Ikuko Shimizu, the first product, a vinyl coin purse, was introduced in Japan in 1974, and in the United States in 1976. … The Hello Kitty line has since developed licensing arrangements worth more than $1 billion a year in sales. Examples of products depicting the character include dolls, stickers and greeting cards to clothes, accessories, school supplies, dishes and home appliances.

This might be good for Valentine’s Day. Sanrio has licensed an awful lot of Hello Kitty products, and who would not enjoy a Saturday afternoon flaunting their Hello Kitty Lawnmower?

by Robert C. Lehrman on October 28, 2008

During the past 20 months TTB has approved several dozen absinthe brands. Almost all are produced in Switzerland, France, and the US — points west of the Czech Republic. Above shows two of the earliest-approved products made in the Czech Republic, approved a few days ago. This is significant due to a long rivalry between Czech and non-Czech absinthes. The Czech products are somewhat different, and these Stromu products show it well: they have added flavors rather than herbs added before the final distillation; the proof is somewhat higher; Djabel suggests lighting the product on fire (back label). The latter is frowned upon by most other producers, to put it mildly. We would also expect many absinthe brands to fight over the trademark rights to the Green Fairy name; this term has long been applied to numerous absinthes all over the world. Here is a list of the first 20 or so absinthe products approved for US sale. This also shows the massive leadtime sometimes required to bring an alcohol beverage product to market in the US. For Djabel: the importer got formula...

by Robert C. Lehrman on October 27, 2008

A few days ago Liqurious reported a Duff Beer sighting. It appears to be the real thing. There is a video review at iFoods.tv and there is a Duff Beer website here. But alas, this beer will remain a figment of the cartoon. There is nothing very similar approved in the TTB database. The nearest thing is the above keg label, for the beer at Duff’s famous wing restaurant in Buffalo, New York (near and dear to Robert’s heart as it was a mile from the law school campus). We are unlikely to see Homer Simpson’s favorite beer anytime soon, at least in the US. Matt Groening (creator of The Simpsons TV show) has stated that he will not license the Duff trademark for a real beer, over concern that it would encourage kids to drink. Fox TV and Groening sued an Australian producer of Duff in 1995. The court concluded:

My conclusion is that the breweries have engaged in a course of conduct calculated to achieve and exploit a strong association between their use of the name “Duff Beer” and “The Simpsons”, which in fact is deceptive, while at the same time, hoping to avoid legal liability. In fact, their hope...

by Robert C. Lehrman on October 14, 2008

Three out of three West Coast vintners agree it’s a recession. Of these, The Ross Valley Winery (of San Anselmo, CA) was first, with TTB approval on May 6, 2008. Concannon Vineyard (of Livermore, CA) was second, with approval on June 3, 2008. TTB approved the label for Woods Lake Winery (of Woodinville, WA) on October 2, 2008.

This tends to show the common, simultaneous rush to grab onto a promising new trend. It also raises the question of how US trademark law would or should handle several wineries embracing one brand name at about the same time.

Update: Comment from a veteran trademark lawyer.

In this case, the three West coast wineries probably should have conducted trademark searches for RECESSION RED. Had they done so, they would have found that a Sea Cliff, New York company, Books & Tomatoes, Inc., filed a trademark application in March 2008 to register the mark RECESSION RED for wine. This application may cause these other wineries some difficulty. More…